465 Mass. 102 - Appellant Medina Brief - Mass Cases

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• TABLE OF CONTENTS
TABLE OF AUTHORIT ................................ J.J.
ISSUES PRESENTED ..................................... 1
• STATEMENT OF THE CASE ................................ 1
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PRIOR PROCEEDINGS AND STATEMENT OF FACTS ............. 3
STANDARD OF REVIEW ................................... 7
ARGUMENT ....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
I. DR. HOCHBERG'S DUTY TO WARN HIS PATIENT AGAINST
DRIVING WHILE SUBJECT TO SEIZURES EXTENDS TO THE
DRIVING PUBLIC ....................................... 8
A. The Physician's Duty ses From: (i) s Creation
Of A sk And (iil The Physician-Patient ationship
.. . .. .. . .. .. .. .. .. .. .. .. .. .. .. .. . .. .. ".. " .. .. .. .. .. .. .. ., .. .. .. .. .. .. .. .. .. .. .. .. ., .. .. .. .. .. .. .. .. a
i.. Risk Creation""""." ............ " ... " . It " " " " " ......... ., .. " .... " B
ii. The , Physician-Patient Relationship
........... 11
B. Dr. Hochberg's Duty To Warn Extends The Driving
Public Under Ordi Principles Negligence ..... 15
II. THE RECOGNITION OF A SPECIAL RELATIONSHIP WITH
POTENTIAL THIRD-PARTY VICTIMS IS CONSISTENT WITH
MASSACHUSETTS COMMON LAW AND STATUTORY LAW .......... 17
III. PUBLIC ICY SUPPORTS THE IMPOSITION A DUTY
TO WARN A PATIENT AGAINST DRIVING WHILE SUBJECT TO
ZURES " .. It .. " " ...... '" .. " .. " " " " .... " ............ "" .. " " " " " .. " .............. " " 23
IV. SUMMARY JUDGMENT WAS INAPPROPRIATE BECAUSE THERE
ARE DISPUTED ISSUES OF MATERIAL FACT ................ 28
CONCLUSION .......................................... 32
CERTIFICATION ....................................... 33

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TABLE OF AUTHORITIES
CASES
Adamian v. , Inc.
353 Ma s s. 4 98 (1968) .............................. 18
Allstate Insurance Company v. Dalyrymple
883 F.Supp. 963 (1995) ............................ 30
Brune v. Bel ff
354 Mass. 102 (1968) .......................... 11, 12
Carey v. New England Organ Bank
446 Mass. 270 (2006) ............................... 7
Carr v. Howard
5 Mass. L. Rep. 63 (Norfolk Super. .1996) ... 19, 21
Cassesso v. Comm'r of Carr.
390 Mass. 419, 422 (1983) ......................... 29
Coombes v. Florio
450 Mass. 182 (2007) .......................... pass.un
• Duvall v. Goldin
139 Mich. App. 342 (1985) ................. 26, 27, 29
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Freese v. Lemmon
210 N.W.2d 576 (Iowa 1973) ........................ 31
v. Tips
651 S.W. 2d 364 (Tex. App. Ct. 1983) .......... 24, 28
v. Allstate Ins. Co.
883 F.Supp.963 (0.Oel.1995) ................... 27, 31
Hub Associates, Inc. v.
357 Ma s s. 4 4 9 (1970) ............................... 7
Irwin v. Town of Ware
3 92 Ma s s. 74 5 (1984) .............................. 20
Joy v. Eastern Maine Med. Ctr.
529 A.2d 1364 (Me.19B7) ........................... 27
• Lev v. Beverly Enterprises-Massachusetts, Inc.
4 57 Ma s s. 23 4 ( 2 0 10) ............................... 7
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Luoni v. Thomas Berube
431 Ma s s. 72 9 ( 2 000) .............................. 18
Maffei v. Roman Catholic shop of Boston
4 4 9 Ma s s. 2 3 5 ( 2 007) ............................... 7
McGuiggan v. New England Tel. & Tel. Co.
398 Ma s s. 152 (1986) .............................. 18
McKenzie v. Hawai'i Permanente Med. Group, Inc.
98 Haw. 296 (2002) ................................ 27
• Medina v. llemer
2005 WL 3 7226 (Suffolk . Ct. 2005) .... . passim
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Mullins v. Manor ColI , 389 Mass. 47 (1983)
389 Mass. 47 (1983) ............................... 18
Myers v. Queensberry
144 Cal. App. 3d 888 (1983) ................... 26, 30
Pederson v. Time, Inc.
404 s. 14, 16-17 (1989) ....................... 7, 29
Poskus v. Lombardo's of Randolph
4 2 3 Ma s s. 637 (1996 ) .............................. 19
Riggs v. stie
342 Mass. 402 (1961) .............................. 12
Small v. Howard
128 Mass. 131 (1880) .............................. 12
Schuster v. Altenberg
144 Wis.2d 223 (1988) ............................. 28
Stepakoff v. Kantar
393 Mass. 836 (1985) .............................. 11
Taylor v. Smith
892 So.2d 887, 893-94 (Alabama Sup.Ct. 1994) ...... 27
Welke v. Kuzilla
144 Mich.App. 245 (1985) .......................... 26
• Wharton Transport Corp. v. Bridges
606 SW2d 521 (1980, Tenn) ......................... 16
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Wilschinsky v. Medina
108 N.M. 511, 515 (1989) .......................... 27
Zavalas v. State Dep't of Carr.
124 Ore.App. 166 (1993) ........................... 28
STATUTES
5 4 0 CMR § 2 4 • 0 5 • • • • • • • . . • • • • • • • . • • • • . . • . • • • • . • • • • . • • 2 5
M.G.L.A. 112 § 129A ............................. 21, 22
SECONDARY SOURCES
51 MAPRAC § 2. 2 .................................... 12
Prosser, William L.
Handbook of The Law of Torts (4th ed. 1971) ....... 14
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ISSUES PRESENTED
i. Does a physician have a special relationship,
either with s patient or with the eseeable
class of victims, that imposes a duty upon the
physician to advise a patient who is subject to
seizures not to drive a motor vehicle?
ii. Alternatively, a physician's indication to
his s zure-prone patient that driving is
permitt cons tute a creation of risk?
iii. Does the sk of rm created by this a rmat
act extend to third-party ctims under the
Coombes lding?
iv. Is there a dispute of material s, such that
summary judgment for Dr. Hochberg was improper?
STATEMENT OF THE CASE
This civil action was init lly entered in the
Superior Court Department of the T al Court for
Suffolk County. The action was commenced by
aintiff-Appellant, Richard Medina ("Medina"),
against Francine Pillemer, As Executrix of The Estate
of Robert D. Riskind ("Riskind") on January 23, 2004.
Riskind was suffering from a non-curable
malignant in tumor which made him subject to
zures. He was treating for this condition with a
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neurologist, H. Hochberg, M.D. (Dr. Hochberg).
Dr. Hochberg was aware that Riskind was regularly
driving a motor vehicle and iled to warn, advise, or
instruct Riskind not to drive, despite the fact that
Riskind was experiencing severe neurological symptoms.
Instead, he affirmatively indicated to Riskind in
writing that driving was permitted.
On December 10, 2001, Riskind had a zure while
driving a motor vehicle, which caus him to serious
ure t Plaintiff-Appellant, Medina. On April 25,
2005, the Superior Court (Gants, J.) allowed Medina's
motion to add Dr. Hochberg as a party defendant, on
the grounds that breached his duty to the driving
public.
However, on July 25, 2011, the Superior Court
(Hogan, J.) issued a decision allowing summary
judgment for Dr. Hochberg, contradicting 2005
Decision. The court concluded that this commonwealth
does not recognize a physician's duty to a third party
to warn his patient against driving while subject to
seizures.
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6. September 19, 2001, Dr. Hochberg's notes
• indi Riskind continued to have two to three
seizures a y. See App: A-43.
7. On 17, 2001, Dr. Hochberg wrote a letter
• to Riskind, stating: "You are now able to ... drive
a car".
• 8 . On December 10, 2001, Riskind was driving a car
on Washington reet Newton, Massachusetts, when he
suffered a seizure, by his neurological
• condition. As a re having a seizure while
driving, the automobi
by Riskind veered
from the highway, st
Plaintiff-Appellant
• Medina, a pedestrian who was walking to the trunk of
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his car. Medina suf
of the motor vehicle
334, A-33S.
severe injuries as a result
9. On January 23, 2004, Medina 1 s t k
Superior Court against Francine Pillemer, As Executrix
of The Estate of Riskind. The Complaint all
said decedent, Riskind, was negligent operat s
motor vehicle on December 10, 2001, which resulted
said vehicle to swerve off the highway and strike and
• ure the plaintiff, Medina, a pedestrian who was
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wal to the trunk of his car. A certified copy of
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the Superior docket entries and a copy of
• Complaint are at hereto. See App: A-1, A-9.
10. On January 8, 2005, the plaintiff obtained
complete cal from Dr. Hochberg. The
• plainti promptly had the medical records
reviewed by a expert, John M. Friedberg,
• M.D. ("Dr. ), to determine whether there was
any the standard of care by Dr.
Hochberg to advise, warn or instruct
• Riskind not to e a motor vehicle. Dr.
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established "the seizure of December 10, 2001,
was reas seeable u and concluded as follows:
"Dr. rg, a professor of neurology who
knows and knew his patient Dr.
Riskind, have expressly and repeatedly
, instructed, and warned his
no uncertain terms never to operate a
Dr. Hochberg's failure to do so,
cit encouragement to his patient
to continue , is incomprehensible and a
signi rture from the standard of
medical part of a neurologist. It
clearly ow the standard of care of the
ave neurologist and was a major
contribut in the accident of December
10, 2001, severely injured your client,
Richard Medina./l See App: A-54.
11. On March 16, 2005, Medina filed a motion with the
Superior Court to Dr. Hochberg as a party
• defendant and to Ie his First Amended Complaint. See
App: A-13.
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12. On April 25, 2005, the Superior Court (J. Gants)
issued a decision (hereinafter "the 2005 Gants
decision"), allowing the Plaintiff's motion to add Dr.
Hochberg as a party defendant on the grounds that Dr.
• Hochberg had a duty to advise his patient against
driving while subject to seizures. See App: A-57.
• 13. On July 25, 2011, the Superior Court (J. Hogan)
contradicted the 2005 Gants decision and allowed
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summary judgment for Dr. Hochberg. The court ruled
that a physician does not owe a duty to the driving
public to warn his patient against driving as a iesult
of a seizure disorder. Judgment was entered on August
5, 2011. See App: A-336, 383, 402.
14. On August 31, 2011, Medina filed a notice of
appeal. See App: A-6. On February 8, 2012, the case
was docketed in the Appeals Court. SeeApp: A-404.
15. On February 15, 2012, Medina filed an Application
• for Direct Appellate Review with the Supreme Judicial
•
Court. On March 27, 2012, the Court allowed Medina's
application.
16. On April 6, 2012, this case was entered on the
docket of the Supreme Judicial Court. On April 11,
2012, the Court allowed Medina's Motion to file this
amended brief.
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STANDARD OF REVIEW
The standard of review of a grant of summary
judgment is whether, viewing the evidence in the light
most favorable to the nonmoving party, all material
facts have been established and the moving party is
entitled to judgment as a matter of law. Lev v.
Beverly Enterprises-Massachusetts, Inc., 457 Mass.
234, 237 (2010). In order to be entitled to summary
judgment, the moving party must affirmatively show
that there is no real issue of fact. Hub Associates,
Inc . .'Y..:.. Goode, 357 Mass. 449, 258 N.E.2d 733, (1970).
See Iso Pederson .'Y..:.. Time, Inc., 404 Mass. 14, 16-17
(1989) (the moving party has the burden of
establishing that no material facts are in dispute) .
On review of a motion judge's order granting
summary judgment, the Appellate Court reviews the
motion judge's legal conclusions de novo. Maffei .'Y..:..
Roman Catholic Archbishop of Boston, 449 Mass. 235
(2007). When the Supreme Judicial Court reviews a
summary judgment motion, it makes all permissible
inferences favorable to the nonmoving party and
resolves any disputes or conflicts in summary judgment
materials in their favor. Carey .'Y..:.. New England Organ
Bank, 446 Mass. 270, 273 (2006).
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against driving due to the risk of losing
consciousness. In fact, the physician in Coombes
affirmatively indicated to s patient that he could
safely resume driving. at 185. As a result of the
side effe s from the medication, the patient lost
consciousness while driving, his automobile left the
road, and he injured a third party who was standing on
the sidewalk. Id. Because was the physician's "own
act of prescribing medication that created the
foreseeable sk of an accident,H there was no need to
impose a "special relationship" duty to hold the
physician liable to the third party. rd. at 194. The
Court held that a duty arises out of the physi an's
creation of a driving risk.
Here there was an affirmative action taken by Dr.
Hochberg that created the risk of a motor vehi
accident. This occurred when he indicated to his
patient that driving was permitted. The evidence
establishes that just months prior to the incident Dr.
Hochberg was aware his patient was suffering from a
degenerative health condition accompanied by seizures.
On September 5, 2001, the physician's notes indicate
Riskind's neurological condition was so severe that he
"began to substitute the word 'chicken' for virtually
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all words." See AEP: A-41. As a result, Dr. Hochberg
increased Riskind's Decadron, a medication to shrink
the surrounding swelling, and put him on a
chemotherapeutic agent usually reserved for leukemia.
Id. On September 19, 2001, Dr. Hochberg's notes
indicate that Riskind continued to have two to three
seizures a day. See AEE: A-43. Dr. Hochberg was in a
unique position to fully understand Riskind's health
condition and adequately warn him to prevent a motor
vehicle accident. However, instead of warning Riskind
against driving he actually indicated in writing that
Riskind was able to drive the very next month, on
October 17, 2001. See AEE. A-44. Eight weeks after
receiving this written indication from Dr. Hochberg,
Riskind had a seizure while driving as a result of his
health condition. Just like the patient in Coombes,
his car left the road and hit Medina, who was walking
to the trunk of his car. According to the medical
expert, "Dr. Hochberg's failure to [warn Riskind],
indeed his implicit encouragement to his patient to
continue driving, is incomprehensible and a
significant departure from the standard of medical
care on the part of a neurologist." See AEP: A-54.
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executrix of his estate had brought a claim for
negligence against Dr. Hochberg, sed on the
allegation he breached the standard of care by
failing to advise the patient not to drive. In that
scenario, "there would be no question that the
executrix had stated a valid claim aga tOr.
Hochberg." See App: A-64. This Court should similarly
hold that Dr. Hochberg owed his patient a duty to warn
that arises out of their special relationship.
In the 2011 decision to allow summary judgment
Dr. Hochberg, the Superior Court sapprehended
the applicable law and stated that a physician's duty
to warn cannot arise out of "the simple act of
accepting Riskind as a patient". See App: A-39B. This
conclusion was ly incorrect for two reasons.
First, a physician's act of accepting and treating a
patient is in enough to impose a duty to act
affirmatively to prevent harm to his patient. This
flows logically from the physician's andard of care
as explained through the common law above. Second, it
is not merely the "simple act" of treating that Medina
a forms the basis Dr. Hochberg's duty. The
duty in this case arose because (1) the physician knew
his patient was driving with a disorder that causes
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already owed a duty of care to Riskind, "he could not
avoid that duty by iling to offer advice - a
doctor's error of omission may be as or more serious
than his error of commission." Id. This is especially
evident where, as here, the physician was aware that
his patient was driving. Thus, whether he failed to
warn his patient or affirmatively indicated that
driving was permitted is of no consequence. In either
case, such act or omission fell below the standard of
care of a neurologist.
B. Dr. Hochberg's Duty To Warn His Patient
Extends To The Driving Public Under Ordinary
Principles of Negligence.
The risk created by the physician's af rmative
act and by his failure to warn his patient extends to
Medina as a foreseeable third-party victim. In
Coombes, the Supreme Judicial Court extended a
physician's duty to third parties under principles of
ordinary negligence. 450 Mass. at 190. The court held
"A physi an owes a duty of reasonable care to
everyone foreseeably put at risk by his failure to
warn of the side effects of his treatment of a
patient". Id. In other words, because a physician has
a duty of reasonable care in his treatment of a
patient (an affirmative act), this duty extends to
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public illustrates the eeability harm to this
class of potential victims. Even The Supreme Judicial
Court recognized the fore lity of this harm in
Coombes, noting that warnings nserve to protect the
public from the very harm that creates the parallel
duty to the patient." 450 Mass. at 191. Furthermore,
the that Dr. Hochberg knew his ient was still
driving which is evident in the October 17, 2001
letter to Riskind - also trates the
fore lity of harm that would result from a motor
vehicle accident. See App: A-44. Therefore, Dr.
Hochberg's duty to Riskind extends to all seeable
vict ,including the Plaintiff-Appellant.
II. THE RECOGNITION OF A SPECIAL RELATIONSHIP WITH
POTENTIAL THIRD-PARTY VICTIMS IS CONSISTENT WITH
MASSACHUSETTS COMMON LAW AND STATUTORY LAW.
nMassachusetts law . is s as to whether
a physician has a special ionship, either with
his pat or with the foreseeable class of victims,
imposes a duty upon the physician to advise- a
patient who is subject to zures not to drive a
motor vehicle." Medina v. Pillemer, 2005 WL 3627226
(Mass.Super. 2005). However, the recognition of s
duty is ly consistent with the common law of
Massachusetts. A review of Massachusetts common law
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(as undertaken in the 2005 Gants Decision) reveals
four broad categories of cases in which a special
relationship triggers a duty to protect a potential
victim from harm committed by a third person:
i. When an individual commits an affirmative
act that creates or increases the risk that the third
person will harm a potential class victims, the
individual owes a duty to the potential victim class
to act reasonably in performing that affirmative act.
See, for example, Adamian v. Three Sons, Inc., 353
Mass. 498 (1968) (e.g. tavern owner's duty to stop
serving customer when he reasonably should know the
customer is intoxicated); and McGuiggan v. New England
Tel. & Tel. 398 Mass. 152 (1986) (social host
owes a duty to potent 1 class of victims to stop
serving his guest when he reasonably should know the
guest is intoxicated.)
ii. When there is a special relationship between
the defendant and an identifiable limited class of
persons that includes the plaintiff, the defendant may
owe a duty to the plaintiff to protect him from the
dangerous or unlawful acts of a third person. Luoni v.
Thomas Berube, 431 Mass. 729 (2000). See also Mullins
v. Pine Manor College, 389 Mass. 47 (1983) (a college
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owes a duty to its students to take reasonable steps
to protect them from harm from foreseeable criminal
acts. See also Poskus v. Lombardo's of Randolph, 423
Mass. 637 (1996) (landlord or property owner may be
liable for failing to prevent reasonably foreseeable
criminal acts).
iii. When there is a special relationship between
the defendant and the third person who commits the
harmful conduct, the defendant may have a duty to a
foreseeable class of victims to control the third
person's conduct or to provide reasonable warning
the third person's conduct. See, for example, Carr v.
Howard, 5 Mass. L. Rep. 63, *15 (Norfolk Super.
Ct .1996) (a psychiat st and a psychiatric hospital
that have custody over patients who are dangerous to
themselves and others owe a common law duty to
"members of the public to take reasonable precautions
to control their patients H ).
iv. In certain circumstances, public employees
have a special relationship with the general public
and therefore owe a duty to them when the foreseeable
threat posed by inaction is potentially "calamitous,H
and statutes or ordinances reflect a legislative
intent to protect the general public from the threat.
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"When there is a special relationship between the
defendant and the third person who commits the
harmful conduct, the defendant may have a duty to
a foreseeable class of victims to control the
third person's conduct or to provide reasonable
warning of the third son's conduct." Citing
Carr v. Howard, 5 Mass. L. Rep. 63, *15 (Norfolk
Super. Ct. 1996).
This is the rationale, for instance, behind imposing a
duty on psychologists to warn potent victims that
their ients intend to harm them. Under
Massachusetts G.eneral Laws, a psychologist has a duty
to take reasonable precautions to prevent harm to a
"reasonably identifiable victim". See M.G.L.A. 1 §
To comply with this duty, the statute allows a
psychologist to breach the psychotherapist privilege
and make a limited disclosure to a potential victim
who may be seriously injured by the patient. See Id.
The psychologist has a duty to prevent harm to a
limited class of potent 1 victims - those who he
reasonably believes are threatened by his patient's
conduct. Similarly, as discussed infra, the Coombes
holding bridges the gap between a physician and the
driving public, requiring the physician to warn his
pat against driving in order to prevent harm to
potenti victims. When considered together,
2.1

Massachus s common law and statutory law justify the
imposition of this duty.
This case presents a textbook example of when a
physician breaches his duty to non-patient victims.
Dr. Hochberg had a special ionship with his
ient, Riskind, and with the driving puolic - a
limited ss of potential victims that included
Medina. He was aware that Riskind was suffering from a
degenerative health condition accompanied by seizures.
On September 5, 2001, Riskind's neurological condition
was so severe that he "began to substitute the word
'chicken' for virtually all words." App: A-41. On
September 19, 2001, . Hochberg's notes indicate that
Riskind continued to have two to three zures a day.
See App: A-43. Instead warning his patient not to
drive, actually indicated in writing that Riskind
was to drive the next month, on October 17, 2001.
See App. A-44. Massachus s General Law 112 §129A
allows a psychologist to warn the potential victim (a
non-patient) of the threat harm because that is the
most reasonable way to prevent harm to the foreseeable
victim. Here, the most reasonable step for
Hochberg to prevent harm to skind was merely warning
his own patient not to drive. Such advice is less
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subject to seizures is not as restrictive as the
Defendant-Appellee suggests. Moreover, under the
proposed duty, physicians would 'only be expected to
advise their patients against driving when the threat
of injury in a motor vehicle accident is a real,
foreseeable risk. Where a risk is not apparent in the
first place, the physician will obviously not be
required to warn his patient against driving. Medical
expert testimony in the present case suggests that
such a risk should have been evident to Dr. Hochberg;
thus the risk was foreseeable and the duty to warn
should have attached to Dr. Hochberg.
Furthermore, there is no reporting statute in
Massachusetts requiring physicians to notify the
Massachusetts Registry of Motor Vehicles ("RMV") when
they are treating patients with seizure disorders.
This makes the recognition of a common law duty to
warn patients even more necessary on the grounds of
public safety. While there is no statute requiring a
physician to report his patient to the RMV, the RMV
does require a physician's authorization that his
patient can drive once the patient's license has been
revoked for s zures. 540 CMR § 24.05. Therefore,
the proposed duty is clearly in line with the public
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judgment as a matter of law. Cassesso v. Comm'r of
Corr., 390 Mass. 419, 422 (1983). The moving party has
the burden of establishing that no material facts are
in dispute. Pederson v. Time, Inc., 404 Mass. 14, 16­
17 (1989). Dr. Hochberg has not met this burden; on
the contrary, the evidence tends to raise dispute as
to the facts of this case.
Other jurisdictions faced with situations similar
to the present case have routinely held that the
determination of a foreseeable danger to third parties
is a question for the jury; such questions of fact
preclude summary judgment for the physician. This is
especially true when the plaintiff presents evidence
that a physician's act or omission fell below an
accepted standard of care. For example, In Duvall v.
Goldin, 139 Mich.App. 342 (1985), the plaintiff
alleged that the defendant physician failed to inform
his epileptic patient not to operate a motor vehicle.
The Michigan Court of Appeals concluded it was
"foreseeable that a doctor's failure to diagnose or
properly treat an epileptic condition may create a
risk of harm to a third party." rd. at 352. Summary
judgment for the physician was improper because "the
likelihood of injury to a third party due to an
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also Harden v. Allstate Ins. Co., 883 F.Supp.963
(D.Del.1995). In Freese v. Lemmon l , the Supreme Court
of Iowa held the plaintiffs' petitions, seeking
damages for injuries arising out of a vehicular
accident, stated a cognizable cause of action against
a physician who allegedly failed to advise a patient
not to drive an automobi due to shaving
previously suffered a seizure. 210 N.W.2d 576 (Iowa
1973). In a later appeal, the court held the physician
was not liable on the grounds of the absence of expert
medical testimony establishing the standard of care.
Here, Medina's claim against Dr. Hochberg should
not have been dismissed at summary judgment because
there is evidence that Dr. Hochberg's conduct fell
below the standard of care of a neurologist. Just as
the cited jurisdictions have held, it cannot be said
that the risk of harm to the patient or to Medina was
unforeseeable. On the contrary, because Dr. Hochberg
acknowledged in writing that his pati was driving
s than one month prior to the accident, it is
evident that the risk of harm from a motor vehicle
accident was foreseeable. The plainti here did not
1 Subsequently overruled by Schmidt v. Mahoney, 659"
N.W.2d (2003, Iowa).
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commit the same error as the plaintiff in Freese who
presented no evidence as to the physician's standard
of care. Here, Medina presented expert testimony that
establishes the standard of care a neurologist. The
expe testimony further establi that Dr.
Hochberg's failure to warn his ient fell below this
standard. See App: A-54. There , dismissal at
summary judgment was improper and Medina should be
allowed to proceed with his action against Dr.
Hochberg.
CONCLUSION
For the foregoing reasons, judgment of the
Superior court should be vacated the Defendant,
Dr. Hochberg's, motion for summary judgment should be
denied.
Respectfully submitted,
Dante G. Mummolo, BBO# 360980
Brendan C. Murphy, BBO# 681672
Iannella & Mummolo
55 Court , Ste. 510
Boston, MA 02108
(617) 227-1538
DATED: AEril 20, 2012
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